Duy Tho Hy v. Gillen

• Citation: 588 F.Supp.2d 122
• Decision Date: 03 December 2008
• Docket Number: Civil Action No. 08-11699-JLT.
• Parties: DUY THO HY, Petitioner, v. Brian GILLEN and Bruce Chadbourne, Respondents.
• Court: U.S. District Court — District of Massachusetts

Page 122

588 F.Supp.2d 122

DUY THO HY, Petitioner, v. Brian GILLEN and Bruce Chadbourne, Respondents.

Civil Action No. 08-11699-JLT.

United States District Court, D. Massachusetts.

December 3, 2008.

Kerry E. Doyle, Graves & Doyle, Jeremiah Friedman, Jeanette Kain, Kaplan, O'Sullivan & Friedman, LLP, Boston, MA, for Petitioner.

Mark J. Grady, United States Attorney's Office, Boston, MA, for Respondents.

Kristopher N. Austin, Foley Hoag LLP, Boston, MA, for Amicus PAIR Project, Inc.

MEMORANDUM

TAURO, District Judge.

In this habeas corpus case, Petitioner Duy Tho Hy challenges his confinement without a bond hearing while removal proceedings against him are pending. Petitioner contends that United States Immigration and Customs Enforcement ("ICE") holds him in mandatory detention pursuant to an erroneous interpretation of 8 U.S.C. § 1226(c). Respondents have moved to dismiss for failure to name proper parties, failure to exhaust administrative remedies, and failure to state a claim. For the following reasons, Respondents' Motion to Dismiss is ALLOWED IN PART and DENIED IN PART, and the Petition for Writ of Habeas Corpus is ALLOWED.

I. Background

Congress enacted the mandatory detention provision as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.¹ Although passed in 1996, the mandatory detention provision did not take full effect until October 9, 1998.² Congress expressly provided that the mandatory detention provision would apply prospectively only.³ The text of § 1226(c) provides that:

The Attorney General shall take into custody any alien who—

(A) is inadmissible by reason of having committed any offense covered in section 1182(a)(2) of this title,

(B) is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title,

(C) is deportable under section 1227(a)(2)(A)(i) of this title on the basis of an offense for which the alien has been sentenced to a term of imprisonment of at least 1 year, or

(D) is inadmissible under section 1182(a)(3)(B) of this title or deportable under section 1227(a)(4)(B) of this title,

when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested again for the same offense.⁴

On September 25, 2008, an Immigration Judge ruled that Petitioner was subject to mandatory detention pursuant to § 1226(c).⁵ A citizen of Vietnam, Petitioner emigrated to the United States in 1981.⁶ He arrived as a refugee with his family and is currently married to a U.S. citizen.⁷ On February 5, 1991, Petitioner pleaded guilty to two counts of indecent assault and battery of a minor.⁸ In February 1994, Petitioner completed his sentence and his probation was terminated.⁹

On December 3, 2007, Petitioner was arrested in New Hampshire for simple assault and criminal threatening.¹⁰ The criminal charges were subsequently dismissed, but Petitioner was placed in ICE custody during the arrest.¹¹ An Immigration Judge then denied Petitioner a bond hearing, finding that Petitioner was subject to mandatory detention pursuant to § 1226(c).¹² Although § 1226(c) did not take effect until several years after Petitioner completed his sentence, the Government maintains that Petitioner is still subject to mandatory detention because his release from custody following the 2007 arrest occurred after the statute took effect.¹³ Petitioner never filed an appeal of the Immigration Judge's decision with the Board of Immigration Appeals ("BIA").¹⁴

Petitioner now challenges his detention without a bond hearing and seeks a writ of habeas corpus. Since he was taken into federal custody, Petitioner has been held at the Plymouth County Correctional Facility in Massachusetts,¹⁵ where the federal government has contracted for space to detain aliens.¹⁶ As respondents in this action, Petitioner has named Bruce Chadbourne in his capacity as Field Office Director for the Boston Field Office of ICE and Brian Gillen in his capacity as Superintendent of Plymouth County Correctional Facility.

II. Discussion

A. Improper Parties

Respondents' first contention in their Motion to Dismiss is that Bruce Chadbourne is not a proper party to this action. In Rumsfeld v. Padilla, the Supreme Court held that the proper respondent to a habeas petition is "the person who has custody over the petitioner," typically the warden of the facility where the petitioner is detained, and not a remote supervisory official.¹⁷ The Court further noted that "there is generally only one proper respondent to a given prisoner's habeas petition."¹⁸ The First Circuit has since held more precisely that "there is only one proper respondent to a habeas petition" and that is the "individual having day-to-day control over the facility in which [the petitioner] is being detained."¹⁹ Petitioner argues that both Gillen and Chadbourne have custody over him because Gillen is the warden of the state facility where Petitioner is detained and Chadbourne is the federal officer who ultimately determines whether Petitioner remains in detention.²⁰

When an alien is detained in a state facility at the direction of the federal government, circuits have divided over whether the warden of the detention facility or the responsible federal immigration official is the proper respondent to a habeas petition.²¹ Though not directly addressing the question, the First Circuit appears to have sided with those courts holding that only the warden of the detention facility is the proper respondent in such a case. In Vasquez, the court dismissed a petition for habeas corpus for failure to name a proper respondent, even though Petitioner had named the ICE Boston Field Office Director,²² the same position held by Respondent Chadbourne today. Because the petitioner's immediate custodian is the only proper respondent, a supervisory officer of any kind, even when both state and federal authorities are involved, is not a proper party. As the federal official charged with decisions related to Petitioner's detention, Chadbourne does not exercise "day-to-day control" over Petitioner, but is a supervisory official. Accordingly, the Petition is DISMISSED as to Respondent Chadbourne.

B. Exhaustion of Remedies

Respondents also seek to dismiss the Petition as to Respondent Gillen for failure to exhaust administrative remedies because Petitioner never appealed the Immigration Judge's decision to deny a bond hearing with the BIA.²³ Respondents concede that exhaustion of remedies is not statutorily required where an alien detainee challenges only a bond determination, but argues that the common law exhaustion doctrine should bar review of the Petition in this case.²⁴

Where Congress does not mandate exhaustion by statute, the court's discretion governs whether a petitioner must exhaust his administrative remedies before applying for relief in federal court.²⁵ A court may excuse a failure to exhaust where administrative review would be futile or where the agency has predetermined the issue before it.²⁶ Here, the BIA issued a precedent decision before Petitioner was denied a hearing holding that individuals in Petitioner's position are subject to mandatory detention.²⁷ Because the BIA had already predetermined the issue presented by Petitioner's claim, an administrative appeal would have been futile.²⁸ Accordingly, this court declines to dismiss the Petition for failure to exhaust administrative remedies.²⁹

C. Failure to State a Claim

Finally, Respondents contend that the Petition must be dismissed for failure to state a claim because Petitioner is properly held in mandatory detention pursuant to 8 U.S.C. § 1226(c).³⁰ Mandatory detention is required when an alien is taken into state custody for an offense enumerated in the statute and is subsequently released. A conviction for indecent assault and battery would qualify an alien for mandatory detention, but Petitioner's conviction for that offense and subsequent release from custody each occurred before the statute took effect in 1998. The Government concedes that the statute at issue does not have retroactive effect. The question here, then, is whether Petitioner's release from state custody for unrelated charges after the statute took effect combines with the earlier conviction to qualify Petitioner for mandatory detention. Respondents maintain that the BIA interpretation followed by the Immigration Judge is entitled to Chevron deference and should not be second-guessed by the courts.³¹

Chevron established a two-step framework for reviewing an agency's statutory interpretation.³² In the first step, the court must determine "whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress."³³ Under this step, the court must "try to determine congressional intent, using traditional tools of statutory construction,"³⁴ and considering "the language and structure of the Act as a whole."³⁵ If traditional tools of statutory construction do not reveal clear congressional intent, the court proceeds to step two and determines whether the agency's interpretation is "reasonable," giving substantial deference to the agency.³⁶

The text of § 1226 provides that detained aliens must be given a bond hearing before an Immigration Judge unless the alien qualifies for mandatory detention under the statute. Stripped to its essence, the mandatory detention provision provides that "[t]he Attorney General shall take into custody any alien who . . . is inadmissible ... [or] deportable by reason of having committed [an enumerated offense] when the alien is released."³⁷ The Government's position is that the phrase "when released" refers to any subsequent "release" from state custody, irrespective of...